Friday, 24 June 2016

Many of the consequences of the
UK’s vote to leave the EU will not be clear for some time. However, here’s my
initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is
politically unthinkable that it will be ignored, in particular by MPs whose
constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then
hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and
some on the Leave side hinted at this as a possibility. However, a lot of Leave
voters might resent this idea, as they probably thought that they were actually
voting to leave the EU – although they would of course have the chance to
confirm that position in the second referendum.

This option would also require the
remaining EU to be willing to offer such a re-renegotiation, and it might also
be difficult to put into effect, since it would probably need a Treaty amendment
(limiting the free movement of people, for instance) ratified by all Member
States.

3 What is the process to leave the EU?

The official process is set out
in Article 50 of the Treaty of European Union. I’ve blogged about that in
detail here,
and there’s a shorter version of my analysis here.

It would also be possible to
leave the EU by amending the Treaties, although it is hard to see why that
would be an attractive option to the UK, since it would require long ratification
periods and unanimous voting on the EU side.

Some on the Leave side have
hinted that they think there is some alternative mystery process to leave, although
they have not defined why they think this or what that would entail. The
likelihood is therefore that Article 50 will be used. Any alternative approach
would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal
decision to the EU. That triggers a two-year period at the end of which the UK
is no longer an EU member. That time can be shorter (if an EU/UK withdrawal
treaty provides for this). It could also be longer if all Member States and the
UK agree.

It is up to the UK when exactly
to notify the withdrawal decision. It could delay making the notification,
although a very long delay could possibly increase economic uncertainty and
fuel distrust by Leave voters.

The negotiation concerns a
withdrawal agreement. It is not clear if this is a technical agreement limited
to the fiddly details of the UK leaving, or whether it would also govern the
EU-UK future relationship. The point is relevant since otherwise the EU-UK
relationship would have to be negotiated separately, and different rules would
apply. While the withdrawal agreement is subject to majority voting among the
remaining EU Member States, it is more likely that a separate deal would be
subject to unanimous voting and national ratification.

It is also not clear if a notification
to leave the EU can be withdrawn after it is made. That would be relevant if
the plan were to negotiate the future UK/EU relationship, then ask the public
in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already?

Can the UK change its law to
contradict EU law – repealing the European
Communities Act, restricting the entry of EU citizens – while still an EU
member? As a matter of domestic law, the answer is yes: the UK courts will
accept and apply any Act of Parliament as the law of the land, regardless of
whether it contradicts EU or other international law.

However, this approach would
indeed contradict EU and international law, as Professor Kenneth Armstrong has
pointed out here.
The question is whether that might prompt a retaliatory response from the rest
of the EU as regards EU business, or complicate the withdrawal negotiations.

6 What will be the future relationship between the EU and the UK?

What is the best model for a
future UK/EU relationship? The Vote Leave side seemed to prefer a new treaty
not based on the model of previous treaties with non-EU countries. This would
of course require the consent of the EU, and would likely take longer to
negotiate than using an existing model.

Looking at existing models, the
EU/Turkey arrangement is unsuitable since it is a customs union, meaning that
the UK cannot negotiate its own trade deals with third countries. The EU/Swiss
deal does not give full access to EU services, including financial markets,
although this is a key UK export. Equally the EU’s various free trade
agreements do not give such access either.

The most attractive option is,
for at least a temporary period, for the UK to continue with the ‘Norway option’,
which means continuing to remain part of the European
Economic Area (EEA), the association agreement between the EU, Norway,
Iceland and Liechtenstein.

There are a number of reasons to
prefer this approach. It would provide legal security for exports of most goods
and all services exports from the UK to the EU (and vice versa). A deal on this
could be done quickly, thus reducing the damaging effects of uncertainty about
the UK and EU economies, since the UK is already a part of the EEA, and so arguably
does not need to go through any process to join it. (There could be a legal
dispute on this point, though, since there is no express rule in the EEA treaty
on what happens if the UK leaves the EEA: see the comments on this blog
post). The EEA option is clearly the simplest way to leave the EU sooner,
rather than later – which should appeal to opponents of the EU.

EEA membership would leave the UK
free to sign its own trade deals with other countries. The UK would not be
bound by the EU’s fisheries or agriculture or VAT policy, so could change its
law in those areas too. The EEA doesn’t cover foreign policy or criminal law or
policing issues, although the UK could seek to negotiate a separate deal with
the EU on those issues (on this aspect of Brexit, see my discussion here).

The EEA does cover most EU laws on workers’ rights and the environment – so
signing up to the EEA would guarantee the continued application of those laws
in the UK. That's a big advantage for those who support such laws.

There are limitations to the EEA
option, although they could be addressed. First of all, staying in the EEA does
entail continued free movement of people, and that is one of the key reasons
for the Leave vote. However, unlike between EU members there is a special
safeguard. A Member State can disapply part of the EEA ‘If serious economic,
societal or environmental difficulties of a sectorial or regional nature liable
to persist are arising.’

This decision is unilateral, although
an arbitrator can rule on the ‘scope and duration’ of the safeguard. Also, the EEA
specifies remaining EU could retaliate against any such UK decision (limiting
UK car exports or financial services exports), although again an arbitrator can
rule on the scope of this retaliation.

In short, the UK could invoke a
safeguard clause to limit the free movement of persons under the EEA – but it
would not be cost-free. Having said that the EEA option would probably only be
politically viable in the UK if the government announced its immediate
intention to trigger immediately the safeguard clause as regards free movement of people.

Another limitation of the EEA is that
the UK would no longer have a vote on EU laws as the EU adopted them. Those
laws would in principle still have to be applied in the UK despite the absence
of a vote. Two points on this though. First of all, the UK would not be subject
to as many EU laws as is now – since agriculture, fisheries, tax and non-EU
trade are not within the scope of the EEA. Secondly, for any EU law to apply to
the non-EU members of the EEA it must be approved by those non-EU members. So
the UK could veto the application of that new EU law to the UK at this stage – although again, the EEA provides for
possible retaliation by the EU if it does so.

Finally, the EEA provides
expressly for the non-EU members to pay towards poorer EU Member States. Some
claimed during the campaign that Norway provides this money wholly voluntarily,
but that’s false. Article 116 of the EEA Treaty says as follows:

A Financial
Mechanism shall be established by the EFTA States to contribute, in the context
of the EEA and in addition to the efforts already deployed by the Community in
this regard, to the objectives laid down in Article 115.

The details of the sums involved
are set out in separate Protocols. The UK would have to negotiate one of these
with the EU.

Overall, then, there are pros and
cons to the Norway option. In my view, the pros hugely outweigh the cons –
considering that the EEA could be used as a purely interim measure while
negotiating a longer-term arrangement, which could take the form of amendments
to the EEA itself.

I won’t get into that abstract
legal debate about the meaning of the Vienna Convention, because in my view it’s
necessary to have complete legal certainty on this issue. I don’t believe we
can simply leave it to an international legal principle, which may not always
be enforceable in national courts, to protect such rights. There’s also a
question of the scope of the rule: what about rights in the process of
acquisition, like future permanent residence, or a teenager’s future status as
regards equal treatment in tuition fees?

The better view is that the EU/UK
withdrawal treaty should contain a specific clause on this, which is legally
binding in itself, defines the exact scope of the rule, can be supplemented by
further measures, and must be fully applied in national law. It could read
something like this:

1.Any
citizens of the UK residing in the EU as of [Brexit Day], and any EU citizens
residing in the UK as of that date, shall retain any rights which they acquired
pursuant to EU free movement law before that date. They shall also continue to
acquire rights which were in the process of acquisition as of that date.

2.The
parties shall give full effect to this principle in EU or national law, as the
case may be.

3.The
EU/UK Joint Committee may adopt further measures to implement this rule.

It should be noted that his issue
would be irrelevant if the UK retains its participation in the EEA, as
discussed above.

Some argue that people cannot be ‘deprived’
of their EU citizenship by a Member State leaving the EU. In my view, that’s
untenable. The Treaties define citizens of the Union as being nationals of
Member States. If a country ceases to be a Member State of the European Union,
then obviously its nationals therefore cease to be citizens of the Union.

8 Will Scotland now leave the UK and join the EU?

The question of whether Scotland
might now leave the UK, and seek to retain membership of the EU, is a huge
political question, which also raises domestic legal issues. I won’t comment on
the national legal issues. On the EU law issues, see my earlier
analysis of the possible legal complications for an independent Scotland seeking
to join the EU – although some of this analysis is specifically based on the
assumption that the UK, along with Scotland, would be an EU Member State.

Furthermore, the political
context is possibly now different than it was in 2014, at the time of the Scottish
independence referendum. It may be that the remaining EU could have more
political will to welcome Scotland as an EU member than it might have had in
2014, in the interests of stemming any perception that the EU is falling apart.
Indeed, it might be more willing to waive the usual criteria of single currency
membership and Schengen participation. The Spanish government in office in 2014,
which was a principal obstacle to Scottish EU membership, might not be in
office any more: we should know after this weekend. Possibly some Member States
poured cold water on Scottish EU membership in 2014 out of loyalty to the UK –
but now they have the opposite motivation. The political context of the issue
would now be different: unlike in 2014, facilitating Scottish EU membership
would not be now seen as creating a kind of incentive for a Member State to split
up, given that the UK is leaving the EU anyway.

Coming back to the EEA, it may be
an attractive option for an independent Scotland – either as an interim step
toward joining the EU or as a long-term arrangement. Scotland would not be
covered by EU fisheries policy and would clearly not be obliged to join
Schengen or the single currency. (Norway and Iceland are part of Schengen, but
by means of a separate treaty from the EEA). This option may also be more
palatable for those Member States worried about their own separatist movements,
since it falls short of EU membership.

9 What happens to the remaining EU?

The EU is obviously a key player
in what happens next, and not only in the context of negotiations with the EU.
Some on the Leave side have hoped for the break-up of the EU following Brexit –
although it’s hard to see how turmoil in, or the collapse of, its biggest trading partner is in the
UK’s interests. Certainly there are some politicians in EU countries calling for
withdrawal referendums of their own – although none of them are in government,
and it would remain to be seen what the vote would be if those referenda were
held. We'll obviously have to wait and see what happens.

The countervailing possibility is
that the remaining EU countries make renewed efforts to win back public support
by changes to some unpopular EU policies and practices. I’ll write more soon
about what such changes might be. One point though: although the UK’s position on
Brexit negotiations won’t be confirmed until after the Conservative party
leadership election, and then possibly not until after a general election, the
EU may well formulate its negotiation position in the meantime.

Wednesday, 22 June 2016

It’s nearly the end of this long
referendum campaign. If you’re still an undecided voter, or wavering about your
choice, or if you know someone who is either of those things, I’d like to set
out the arguments why I believe you should vote to stay in the European Union.

I’ll start out by setting out the
case for a Remain vote, then discuss the counter-arguments made by the Leave
side.

The case to Remain

In my view, there are a series of
reasons to stay in the EU: economic benefits, security, workers’ rights and the
environment. I’ll take each of these in turn.

Economic issues

EU membership gives the UK access
to the world’s biggest market, plus 50 more countries which the UK has trade
deals with via the EU. It might be possible to renegotiate that access from
scratch if we left the EU – but it might not. Why take the risk that it isn’t?

The only way to guarantee market
access to the EU and 50 other countries is a vote to Remain. So it’s no wonder
that the large
majority of British businesses support the UK’s EU membership, and are
worried about their prospects if we vote to Leave.

Loss of that guaranteed market
access wouldn’t just affect those whose jobs are linked to trade with the EU. It
would also affect the broader economy, due to the impact on investment and because
the government would have less to spend on public services in a smaller economy.

Many people are suspicious of
economic forecasts. But the risks of a Brexit vote have already manifested themselves
in the last few weeks. The value of the pound and stock markets (which include
pension assets) dropped when a Leave vote seemed more likely, and increased
again when the odds of a Remain vote went back up. There are reports of capital
flight from the country. There’s surely a reason that the Bank of England has
drawn up crisis
plans in the event of a Leave vote – but no such plans in the event of a
Remain vote.

Let’s look further at those
economic forecasts. It’s true that many forecasters failed to predict the 2008
crash. But one who did, Nouriel Roubini, has also warned of
the economic effects of a Leave vote. And the forecasting record of the few
economists on the Leave side is not great either: Patrick Minford predicted
that the UK would lose millions of jobs when the minimum wage was first introduced.

In fact, it’s striking to note
that some pro-Brexit economists also
predict less economic growth for some time following Brexit, although they have
no reason to lie about that – just the reverse. Andrew Lilico expects less
economic growth until 2030:

And Patrick Minford argues that
Brexit can only work if the UK mostly
eliminates manufacturing – hardly a pleasant prospect for British
workers in manufacturing jobs, and their families and communities.

Security

EU membership comes with a host
of laws regarding police and criminal law cooperation. As I discuss here,
those laws have helped the UK get hold of far more fugitives for trial in the
UK, and also remove more criminals for trial abroad. The amount of data
exchanged between police services on alleged terrorists or other criminals has
increased too. Moreover, the UK’s justice system is not threatened by EU law in
this field: we have an opt-out which the government has frequently used.

Countries outside the EU have
access to only a small fraction of these EU measures, and there would be legal
complications if the UK sought to renegotiate access to police data exchange
after Brexit. There’s clear proof of this – even a non-EU country like the USA has
faced repeated legal and political challenges trying to obtain such access in
practice.

Again, the only way to guarantee being
part of these laws is a vote to Remain – while a vote to Leave would remove the
UK from much of this cooperation between police and prosecutors.

Workers

Despite some attempts to deny it,
it’s clear (as I discuss in detail here)
that EU laws have increased the level
of protection for workers’ rights – including equal treatment of women in the workplace – above the level
it would otherwise be in the UK. 60% of EU cases involving equal treatment of
women in the UK, and 62% of other EU cases involving workers’ rights in the UK,
have led to increased protection.

These rulings have improved
rights as regards (among other things) pregnant workers and maternity leave,
equal pay for work of equal value, paid holidays for more workers, and the
protection of occupational pensions when an employer goes broke. It’s no wonder
that the large
majority of trade unions support the UK’s EU membership.

Many senior figures on the Leave
side have explicitly admitted they want to scrap these protections. Indeed,
Nigel Farage says that women who have had children are ‘worth less’ to their
employers. So, again, the only way to guarantee these rights is a vote to
Remain. A Leave vote would risk the future of these employment and equality law
protections, by putting their fate in the hands of people who are implacably
opposed to them.

Environment

There is a raft of EU laws protecting
the environment: from air pollution, to clean beaches, to nature protection,
among many more. It’s no wonder that the Green party and environmental NGOs support the UK’s
EU membership.

On the other side, the pro-Brexit
environment minister has admitted
that there are many EU environmental laws he would scrap in the event of a
Brexit. The businesses backing the Leave side have drawn up a hit list of dozens of environmental
laws they want to rip up.

So, again, the only way to
guarantee these rights is a vote to Remain. As with workers’ rights, a Leave
vote would hand over environmental protection in this country to those who have
admitted their intention to reduce protection.

What about the case to Leave?

What are the risks to Remain?

The Leave side have argued that
there are a number of risks to remaining in the EU. As I point out in detail here,
these arguments are unfounded. The UK has a veto over tax laws, defence,
foreign policy, future enlargement of the EU, the basics of the EU budget
(including the EU rebate), trade deals with non-EU countries (including the
controversial planned ‘TTIP’ deal with the USA), and transfers of powers to the
EU. Turkey is not about to join the EU:
it has agreed only one out of 35 negotiating chapters in 11 years of
negotiations. The UK has an opt out from the single currency, bail outs of Eurozone
states, joining Schengen and EU asylum and criminal law.

You may not trust British politicians
to keep these safeguards. But in the large majority of cases, it’s not up to
them to decide on that – it’s up to us, the voters. British law already says
that in the case of any transfer of powers to the EU, including the creation of
an EU army or joining Schengen or the single currency, another referendum would
be needed to approve the decision, as well as our government and parliament
voting in favour.

Economic

Is there an economic case to
leave the EU? It’s true that the EU has common rules on trade with non-EU
countries, so the UK would in theory be able to sign separate trade deals with
those countries where the EU has not done a deal yet.

The problem is that this theory
would be hard to put into practice. As discussed in detail here,
the UK would have to start from scratch negotiating trade deals with those
non-EU countries which already have a trade deal with the UK, via the EU.
(These include the majority of Commonwealth countries, as I discuss here).
Some of these EU-wide trade deals are very advantageous to the UK – for instance
our exports to Korea have hugely
increased since the EU trade deal with that country. The head of the World Trade Organisation has
also warned
that this would be a difficult task.

In the meantime, the UK would
have to renegotiate access to its largest trading partner – the EU. It’s true
that both sides would have an economic interest in such a deal. But nevertheless,
trade deals take years to negotiate, either with the EU or non-EU countries. There
are plenty of cases where a deal is never struck at all, despite the economic
interests on both sides.

Moreover, the Leave side say they
want a free trade deal with the EU, not continued participation in the EU’s
single market. That doesn’t bode well for the UK’s trade with the EU after Brexit,
because (as explained here)
a single market gives better access to services markets – and the UK has a big
net surplus in services exports.

When asked about economic issues,
those on the Leave side have often said ‘I don’t know’ or ‘so what’. Some have
expressed indifference to a negative impact a Leave vote might have on the
economy, or said that an economic downturn is a ‘price worth paying’ for leaving
the EU.

A good example of this attitude was
Nigel Farage’s attitude in one of the debates to the pharmaceutical industry – a
huge
UK employer (see the graph) withbig net exports to the rest of the EU. He was indifferent to
what might happen to this industry if the UK left the EU, referring to the UK’s
‘domestic market’ and ‘alternative medicine’ instead.

While Boris Johnson has promised
to apologise if leaving the EU causes a recession, that would be cold comfort
to anyone losing their job. The Leave side has no coherent economic plan for
what happens after a Leave vote and appear indifferent to the prospect of
economic loss if we leave.

On a related point, it’s true
that the UK is indeed a net contributor to the EU budget. But the Leave side
has exaggerated the amount the UK pays. As discussed here,
the British rebate money is never sent to the EU, and the UK has control over
the EU money that it sent back to the UK. In all, the net contribution is 1% of
public spending, or 12p per day for the average taxpayer:

That amount of money will not
save the NHS or end austerity. Anyway, as the independent Institute of Fiscal
Studies has pointed
out, even a small drop in economic growth as a result of Brexit would have
a much bigger impact for the UK government’s budget – and therefore taxpayers –
than the UK budget contribution to the EU.

Sovereignty

The Leave side have argued that
the UK needs to leave the EU to be a ‘sovereign’ country. But as pointed out here,
decisions on new EU laws aren’t made by EU Commissioners, but by elected
ministers from each EU country and elected Members of the European Parliament.
Moreover, the UK has voted in favour of 95% of EU legislation:

As for the proportion of UK laws
which come from the EU, the House of Commons has estimated that it’s
only 13%. That doesn’t include EU regulations, but as pointed out here,
most EU regulations aren’t laws in the ordinary sense, but administrative
decisions. So if you counted also all the administrative decisions made in the
UK as well (like every approval of longer pub opening hours, or home extension),
the proportion of British laws coming from the EU would still be small.

Anyway, the key test for
sovereignty is not the percentage of UK laws that come from the EU, but the
percentage of UK laws that were imposed on the UK against our will by the
EU. It’s ridiculous to say that UK laws which were already on the
books, or which we agreed to change at the same time as other Member States, are
an invasion of sovereignty.

Applying this test, since the UK voted
for 95% of EU law, the percentage of UK law imposed against the UK’s will is
only 5% of those 13% of national laws which come from the EU – or 0.65% of the
statute book. Even if you believe the claims of some on the Leave side that 60%
of UK laws come from the EU, the percentage of our laws that were imposed
against our will by the EU would only be 3%. So the sovereignty issue has
simply been hugely exaggerated by the Leave side.

Immigration

The Leave side have argued
against the level of immigration to the UK. But as I have pointed out in detail
here,
the majority of those coming to the UK are non-EU citizens, where the UK
controls the numbers. That’s demonstrated by this graph:

EU law does govern the number of
EU citizens who come to the UK. But they can’t stay unless they have a job or
are self-sufficient. The UK can (and does) deny them social benefits until they
have worked here for a time; and the UK’s renegotiation deal will allow us to
deny them key in-work benefits as well. The UK can (and does) expel or refuse
entry to EU citizens who pose a security risk or who have a criminal record too.

Non-EU citizens do try to enter
the UK from the EU, but they would do that even after Brexit, since it wouldn’t
alter the law in any way on this point. In fact, after Brexit the UK would no
longer be part of the EU’s Dublin system for sending asylum-seekers back to other
EU countries, so in some respects migration control would be harder, not
easier.

There’s a clear trade-off between
EU migration and the economic benefits of EU membership. As the Leave side
points out, countries like Norway and Switzerland are wealthy outside the EU.
But they’ve also signed up to free movement of people with the EU, and have a
greater share of migrants in their population than the UK does.

Is there a left-wing case to leave the EU?

Some on the left-wing side of
British politics believe there is a left-wing case to leave the EU (a so-called
‘Lexit’). There’s an obvious flaw in their logic: there’s no ‘Lexit’ box on the
ballot paper. A Brexit vote tomorrow would not deliver a left-wing government
to office. Rather, as Owen Jones,
Paul
Mason and George
Monbiot have pointed out, it would shift power to those on the right wing
of the Conservative party who favour austerity and loathe
the NHS.

Although, as noted above, those
same people have announced
their intention to scrap environmental and employment laws after Brexit, Lexit
supporters plan to rely on the kindness of Tories to protect those rights. Never
in the course of human history have so many left-wingers had so much faith in
their traditional opponents – with so little reason to do so. If you want a
vision of the future after Brexit, imagine Iain Duncan-Smith fist-punching –
forever.

Conclusion

Of course, the UK has many problems.
But the question is, which of those problems would actually be solved by leaving the EU? Our EU
contribution accounts for 1% of public spending, and EU laws which we didn’t
vote for make up a tiny proportion of our statute book.

Rather, it was our government that
decided to implement austerity cuts. Our government decided to reorganise the
NHS. Our government brought in a bedroom tax, and planned cuts to disability benefits,
while cutting income tax for high earners. Our government nearly tripled
university tuition fees (in England). Our government reduced trade union
rights, hiked industrial tribunal fees, and encouraged zero-hour contracts –
and sets the level of the minimum wage.

Our government sets rates of
income tax, national insurance contributions, inheritance tax and company tax,
and controls what local governments charge as council tax. EU law sets minimum
rates of VAT and excise tax, but the government voted for those laws (it has a
veto on EU tax law), and anyway our government has set the rate of those taxes
well above the EU minimum.

Our government decides on how
much to spend on pensions, on other benefits, on the NHS, on schools, on roads,
on housing, and on foreign aid – on everything except the 1% of the government
spending that goes to the EU. Our national debt stems from our government’s
decisions on how much to spend, compared to how much to tax.

Simply put, our government
controls nearly every decision that affects the UK, including the majority of migration
to the UK. There’s no point voting to Leave based on any of those decisions
which are within our country’s control.

The case to Remain in the EU is
that it enhances our country’s strengths. Membership gives us a guarantee of
trade with our largest market, and 50 other countries besides. It guarantees
continued cooperation on policing and criminal law, and continued protection of
workers’ and environmental rights.

Outside the EU, there are no
guarantees – only risks. The economic risks that trade and investment are
reduced. The security risks that we have less cooperation with police and
prosecutors in the EU. The social and environmental risks of fewer protections
for workers and the environment.

And this would all be for an
illusory gain of sovereignty: when our EU contribution accounts for 1% of
public spending; when we vote for 95% of EU laws; when at most 3% of our laws
were imposed upon the UK against its will by the EU. In effect, the Leave side
want to cut down a forest because they don’t like one tree.

The best way to ensure economic
growth, while retaining other benefits of EU membership, with only marginal
impact on our sovereignty, is to vote to Remain in the EU.

Tuesday, 21 June 2016

It’s been suggested that there
would be a ‘bonfire of rights’ if the UK left the EU – in particular rights
relating to employment and equality. As a response, some have suggested that
the EU has nothing to do with employment and equality law in the UK – that all
such rights are actually home-grown.

As I will demonstrate in detail in
this blog post, it is undeniably the case that EU law has significantly raised the
level of employment and equality rights in the UK – particularly as regards
equality for women in the workplace.

My study of all the cases
reaching the EU court concerning UK law on these issues shows that 60% of all
the EU court cases about equal treatment of women in Britain resulted in a finding
that UK law breached EU law – therefore raising the standards of protection for
women in the workplace. 62% of the other cases on workers’ rights led to the
same result.

As for what would happen in the
event of Brexit, we cannot be absolutely certain – but a large number of the
most prominent supporters of Brexit have admitted in detail their intention to
lower those standards.

I’ll first summarise the main
points, and then set out the facts in detail.

Summary

The EU has not set uniform standards
on every aspect of employment and workplace equality law – and it never will. Its role, according to the Treaties, is to set
minimum standards in certain areas of
employment and equality law. So where the EU hasn’t acted at all – such as on
zero hours contracts, trade union laws or minimum wages – Member States can do
as they like. The blame (or credit) for the choices which the UK makes on those
issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality
in the workplace – Member States can set higher
standards, but not lower ones. The EU rules in effect set a floor below which
Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the
referendum that because the UK has sometimes adopted laws on certain employment
or equality issues before the EU did, the EU therefore added nothing. This
argument profoundly misunderstands the law in this area. Just because the UK
put the Equal Pay Act on the statute books before it was covered by EU laws on equal
pay for men and women doesn’t mean that those EU laws had no added value. That’s
because British laws in this area have often contained many exclusions or
exceptions, and EU law has often removed them.

In this blog post, I prove that
point by looking at every single ruling of the EU court concerning UK law on
employment or equality issues. As I noted in the introduction in 60% of cases, regarding
women’s equality at work, and 62% of other workers’ rights cases, UK law fell below
EU standards.

In practical terms, this
increased protection regarding (among other things): equal pay for work of equal value for women; protection
at work during pregnancy and maternity leave; better protection of pensions
when an employer goes broke; and extension of paid holidays to include more
workers.

However, a significant number of
the relevant laws have been targeted for removal by serious supporters of
Brexit.

In conclusion, European Union law
has significantly increased the level of protection in a number of areas of employment
and equality law. Leaving the EU would not automatically mean that those protections
are lost, but they would no longer be guaranteed – and many of the most senior
figures supporting Brexit have expressed their intention to remove some of
them.

Detailed analysis

The following analysis looks at
(a) the main features of EU involvement in employment and equality law; and (b)
the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this
area has been in the form of laws that set minimum standards on some workers’
rights issues, and on discrimination against workers on some grounds. EU law
also bans discrimination outside the workplace on grounds of sex or race. In a
lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965.
However, there have been some areas where UK law changed because of a new EU
law which the UK implemented, or because of a ruling of the EU courts, or the
UK courts interpreting EU law. A complete list and summary of all the relevant EU
court cases is set out in the Annex. Some of the key cases are discussed
further in the main part.

While some argue that the rights
concerned anyway derive from Conventions (international treaties) agreed within
the framework of the International Labour Organisation (ILO), ILO treaties are
not enforceable in British law. The very fact that the EU court has ruled on UK
breaches of EU employment and equality law proves that the existence of ILO
treaties does not by itself guarantee employment or equality law protection in
individual cases.

Employment law

The EU does not deal with every
employment law issue. In fact, it can’t. The EU treaties rule out any EU laws
on pay or trade union rights. So there are no EU laws on those issues, although
in some cases the EU has an indirect impact on these topics. There are also some areas where the EU could
act if all Member States agreed, such as rights on the termination of
employment. But it is hard to reach unanimous agreement on employment law
issues, and so there are few laws in these areas either.

What topics does EU law address?
First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on
working time, which guarantees a minimum amount of four weeks’ paid
holiday. Although the UK had a law in force on this issue before the EU law, it
did not guarantee paid holidays for all workers. The EU court case law has specified
in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major
changes to workers’ employment
contracts. In particular, there are EU laws on three issues: rights in
the case of mass redundancies; rights when an employment contract is affected
by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for
redundancies, or provide for rules on redundancy payments – so the UK and other
EU countries can regulate those issues however they want to. First and
foremost, this law it sets out a waiting period before large numbers of
redundancies can be made, once the employer has decided in principle to make a
lot of its workers redundant. The employer must give a detailed explanation of
its plans to the workers who are set to lose their jobs. During the waiting
period, the workers’ representatives and the employer must hold discussions
with a view to helping as many affected workers as possible, for instance by
saving jobs or retraining. If the employer fails to do this then there must be
some form of sanction.

The EU court has ruled that the
UK had not applied this law properly when it said that employers only had to
consult the workforce when there was a trade union recognised by the employer.
This was a breach of the EU law because that law required workers to be
consulted about mass redundancies whether there was a trade union representing
the workforce or not, and whether the trade union was recognised by the
employer or not. Also the UK had not provided enough of a sanction for
employers who breached the law. While employers were in principle subject to a
fine for breaking the law, they could deduct it from the redundancy payments
which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount
of workers’ back pay which may be owing at the time of insolvency has to be guaranteed.
This law also requires a basic protection of occupational pensions where
businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in
such cases. British law was changed as a result.

Another issue addressed by EU law
is so-called ‘atypical work’.
This refers to work which is different from the traditional full-time
open-ended contract with one employer. In particular, there are different EU
laws for three types of atypical work: part-time work, fixed-term work and
agency workers. There are no EU laws on ‘zero-hour’ contracts or internships,
however.

Basically these EU laws say that
the atypical workers who are covered by them should be treated equally with
regular employees as regards their pay and conditions. Also, employers should
make it easier for part-time workers or agency workers to join the regular
workforce, and for full-time workers to switch to part-time work if they
wish. For fixed-term workers, there must
be limits on the number of times a contract can be renewed over and over, to
protect against exploitation.

Finally, another issue addressed
by EU laws is worker consultation and
information. There is both a general law on worker consultation and
information in large companies, and a specific set of rules of ‘European works
councils’, which applies to multinational companies with over 1000 employees
across the EU. These laws allow the employers and the workforce to reach
alternative arrangements if they wish. There are no EU rules requiring small
businesses to inform and consult their workers, except in the special case
where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination
on six grounds: sex, race, age, disability, religion and sexual orientation.
The laws on sex and race discrimination go beyond employment, and also ban sex
or race discrimination in access to goods or services, like insurance. However,
the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct
discrimination, ie discrimination purely based on someone’s age, race, sex,
etc. However, they also ban indirect
discrimination: unequal treatment for another
reason, but which mostly affects people of a particular age, sex, etc. For
instance, unequal treatment of part-time workers will affect both male and female
workers, since there are some men working part-time. But it mostly affects women, since they make up
the majority of part-time workers. So it would be an example of indirect sex
discrimination, although since the adoption of an EU law devoted to the issue
of part-time workers (see above in this chapter), the sex discrimination angle
is no longer as relevant.

How do these laws affect the UK?
As noted above, the UK usually had laws on these issues before the EU did.
However, the EU laws have had an impact on some of the details that are
important to large numbers of individual cases.

Looking at the case law of the EU
court, there have been important rulings which improved UK standards in
particular on:

equal pay for work of equal
value;

prohibiting the dismissal of
women earlier than men due to retirement age difference;

effective remedies (removing the
cap on damages for sex discrimination);

dismissal due to pregnancy;

equal treatment after returning
from maternity leave; and

dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number
of Brexit supporters, including cabinet ministers like the employment minister,
have specifically
stated that they want to use the opportunity that Brexit would create in
order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on: collective redundancies; atypical workers;
working time (including paid holidays); driving time limits for the
self-employed; rights for pregnant workers and women on maternity leave; and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are
‘worth less’ to an employer.

It should be noted that changes like these would not even have to go
through as an Act of Parliament – Vote Leave supporters plan to fast-track the
abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment
and discrimination law. It is not the source of all UK law but it definitely
provides protection which would not otherwise exist in certain areas, such as
holiday pay and equality for women in the workplace. It is highly likely, based
on the expressed intentions of senior supporters of Brexit, that there would be
a ‘bonfire’ of some of these rights after Brexit.

The following is a list of all EU court cases
involving UK employment and equality law. I have grouped them by topic and
indicated for each case what the subject matter was, and whether the UK law was
in breach of EU law or not in each case.

Equality at
work – 32 breach, 23 no breach: breach of EU law in 55% of cases

What impact does EU membership
have on policing and criminal law in the UK – and what would be the impact of
Brexit? I’ll give the shorter summary version of the answer to those questions
first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in
this area adopted before the Treaty of Lisbon came into force (1 December
2009). Since then, it has had two opt-outs instead: a) it can opt in (or out)
of any new EU law in this field adopted after that Treaty; and b) it
could go back and opt out of any old EU laws which were adopted
before that Treaty. The UK used the latter power to opt out of the majority of
pre-Lisbon laws.

There are five main areas of EU
criminal law and policing. One area is the definition of crime, where the UK has
opted into a small number of EU laws on issues such as child abuse. A second
area is criminal procedure, where the UK has opted into some EU laws on
suspects’ rights and crime victims’ rights. These are basically domestic areas
of law, and there’s no reason to think the UK would change its rules after
Brexit.

However, the other three areas
concern international cooperation, where it is impossible for any individual
country to act alone. Those areas are: a) recognition of criminal decisions (on
arrest warrants or gathering evidence, for instance); b) the exchange of police
information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual
recognition, there are other international rules on some of these issues – such
as extradition – but they do not go as far as the EU rules. In some cases,
there are no alternative international rules on the same issue. The UK could
seek to negotiate a treaty with the EU on these issues, but the past precedents
show that non-EU countries are able to negotiate only limited participation in
these EU laws.

On EU agencies, non-EU countries
can participate as associates, but this means a more limited involvement in each
agency than they would have as EU Member States.

The UK’s involvement in police
information exchange with the EU would also be subject to renegotiation if the
UK left the EU. Again, past precedents show that non-EU countries are able to negotiate
only limited participation in these EU laws. And if the UK did not continue to
sign up to EU data protection laws fully, there would be difficult legal disputes
that could limit the transfer of policing data to the UK’s law enforcement
authorities from the EU.

It cannot be seriously argued
that the UK has ‘lost control’ over its law enforcement and intelligence agency
operations to the EU, given the UK’s opt-out, the focus of EU law on
cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely
to lead to a significant reduction on cooperation in criminal and policing
matters between the UK and the EU.

The details

First and foremost, while the EU
has adopted a number of laws in this area, the UK only participates in some of
those laws, and has an opt-out over future laws in this area too. This blog
post will in turn: (a) describe the basics of EU law in this area, including
the UK opt-out; (b) summarise the main EU laws in which the UK does (or does
not) participate in; and (c) indicate what could happen in the event of
‘Brexit’. For a full academic treatment of these issues, see the fourth edition
of my EU
Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law

Before the entry into force of
the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were
subject to a different legal framework from ordinary EU (or European Community)
law. The powers of the EU institutions (Commission, European Parliament, EU
Court) were more limited, and each Member State, including the UK, had a veto
over all laws.

The Treaty of Lisbon repealed
these special rules, bringing EU criminal and policing law into the general
framework of EU law. From this point on, the usual rules of EU law have applied
to this field, with a few exceptions. However, the key point for the UK is that
in place of a veto, it got not just one but two
opt outs from EU law in this field.

First, the UK can opt out of (or
into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty
of Lisbon.

Secondly, the UK got the power to
opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke
this power as of 1 December 2014. The UK government used this to opt out of all
but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the
discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law
touches on five main issues:

(a)substantive
criminal law (ie the definition of crimes);

(b)mutual
recognition in criminal matters (ie applying another EU Member States’ criminal
law decision, where there is a cross-border issue like gathering evidence in
another EU country, or asking another country to hand over a fugitive to face a
trial or serve a sentence);

(c)harmonisation
of criminal procedure;

(d)exchange
of police information; and

(e)EU
agencies.

The effect of the two sets of
opt-outs is that the UK has been highly selective about the EU law in this area
which it wishes to apply. Taking the five areas of law in turn, first of all
the UK has opted out of almost all EU substantive
criminal law. It is covered by the EU Directives adopted since the Lisbon
Treaty defining offences relating to trafficking
in persons, sexual
abuse of children and attacks
on information systems (a form of cyber-crime), but not by EU laws defining
offences relating to terrorism, organised crime, fraud, drugs, market abuse by
bankers, racism, or currency counterfeiting.

Secondly, the UK is far more
engaged in mutual recognition in criminal matters, in particular the flagship
law on the European
Arrest Warrant (EAW), which is a fast-track extradition system. The UK has
also signed up to EU laws on:

(b)victim
protection orders (where the victim of domestic violence moves to another
EU country and wants a restraining order against her abuser to be transferred
to that country when she moves there);

(c)pre-trial
supervision (so a criminal suspect can be released on bail to await trial
on less serious offences back in Britain, rather than spend a long time in
pre-trial detention in a foreign prison);

(d)confiscation
of assets and freezing
orders (to ensure that the proceeds of crime held by alleged or convicted criminals
in another EU country can be frozen pending trial, and seized if the suspect is
convicted);

(e)the
effect of prior sentences or other judgments (so that previous criminal
offences committed in another EU country are counted when assessing whether
someone is a repeat offender); and

(f)the
transfer of prisoners
and criminal
sentences (simplifying the movement of foreign prisoners to jails in their
EU country of origin, and recognizing fines imposed by a criminal court too –
including any penalties imposed against companies for breach of criminal law).

Finally, as regards EU agencies,
the UK participates in Europol
(the EU police intelligence agency) and Eurojust (the agency
which coordinates work of prosecutors in cross-border cases) at present.
However, it has opted out of a new law concerning Europol, and a proposed new
EU law concerning Eurojust,
which set out (or would set out) revised rules for those agencies following the
entry into force of the Treaty of Lisbon, although it might decide to opt in to
those Regulations after they are adopted. The UK used to host the European
Police College (a training agency), but refused
to continue hosting it and opted out of a new
version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a
European Public Prosecutor. While the EU Commission proposed
a law to create a European Public Prosecutor in 2013, the UK has opted out of
that proposal. Indeed, the UK would have to hold another referendum before it
opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU
laws on policing and criminal law are irrelevant to the UK’s membership of the
EU, because the UK can simply do everything it wishes to do in this field in
its domestic law. That’s a valid argument for two of the five areas of law described
above: substantive criminal law and harmonisation of procedure. But it doesn’t
work for the three other areas – mutual recognition, exchange of information
and participation in EU agencies – which necessarily require some cooperation
with other states. Put simply, a British Act of Parliament cannot regulate how
France or Germany issue extradition requests.

What would happen if the UK left
the EU? In each case, as with other areas of EU law and policy, it would depend
on what the UK and EU negotiated afterward. But it is possible to give some
general indication of the consequences.

In the area of mutual
recognition, the UK can fall back on Council of Europe treaties, which address
some of the same issues (note that the Council of Europe is a separate body
from the EU, which includes non-EU European countries like Turkey and Russia;
some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do
not go into as much detail as the EU laws, and are often less effective. As an indication of this, see the UK government
information
about the application of EU law in this area. Extradition from the UK has gone from
60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis
of the European Arrest Warrant. Over 95% of those sent to other Member States
are not British.

Moreover, in some cases the UK
and/or some other Member States have not ratified the relevant treaties. For
instance, fewer than half of all Member States have ratified the Council of
Europe Convention on validity of criminal judgments; the UK has not ratified it
either. But the EU law on mutual recognition of criminal penalties sets out
rules on one of the key issues in that Council of Europe treaty: the recognition
of criminal financial penalties imposed by another Member State’s court. Some
issues have not been the subject of Council of Europe treaties at all, such as
the pre-trial supervision rules set out in EU law. In these cases, the EU law
is the only means of ensuring the cooperation in question.

Another alternative is to
negotiate treaties with the EU on these issues. The EU has been willing in
practice to negotiate access to some aspects of its criminal law measures: a
form of the EAW for Norway
and Iceland, an extradition treaty with the USA,
and mutual assistance (exchange of evidence) with Norway
and Iceland, the USA
and Japan.
But the extradition treaty with Norway and Iceland took years to negotiate, is still
not in force at time of writing, and does not oblige States to extradite their
own citizens – meaning that the UK would not be able to ask Germany to
extradite Germans, for example. That restriction cannot easily be negotiated
away in the event of Brexit, because some EU countries have constitutional
problems which prevent them extraditing their own citizens outside the EU. (On
these sorts of issues, see E Guild, ed, Constitutional challenges to the
European Arrest Warrant).

Overall,
there are no such treaties agreed with
any non-EU countries on the large majority of EU criminal law mutual
recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation
in force.

A particular concern of critics
of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’)
test which was traditionally applied by the UK before accepting an extradition
request. While it is sometimes argued that the EAW abolished the ‘prima facie’
test as regards EU countries, this is not correct. In fact, the UK waived the
right to apply this test to European countries when it signed up to the Council
of Europe extradition treaty back in 1990, over a decade before it signed up to
the EU’s EAW: see the Extradition Act
1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507).
In other words, the test was not abolished because of EU law, but was already
abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker
review of UK extradition law, the decision was made because of the
difficulties it posed for extradition in practice: a White Paper of 1986 stated
that it ‘did not offer a necessary safeguard for the person sought by the
requesting State but was a formidable impediment to entirely proper and
legitimate extradition requests’. Ultimately the Baker review recommended that
there was ‘no good reason to re-introduce the prima facie case requirement’
where it had been abolished, and that ‘No evidence was presented to us to
suggest that European arrest warrants are being issued in cases where there is
insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption
of innocence’, although in fact a fugitive who is extradited pursuant to this
test still either has to be convicted pursuant to a trial in the requesting
State, or has already been convicted but fled the country. In other words, the
presumption of innocence still applies
when the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements
to cooperate with Europol and Eurojust, like other non-EU countries. However,
as the Director of Europol points
out, such agreements don’t allow the UK to have direct access to databases,
to lead investigation teams, or to take part in the management of those
agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU
states access to the Schengen
Information System, and to the ‘Prum’
rules on access to each Member State’s national policing databases. But this
was linked to those countries fully joining the Schengen system. The UK would
obviously not do that after a Brexit.

The EU has also signed treaties
on the exchange of passenger name records with non-EU countries (the USA,
Canada
and Australia),
as well as a treaty
on the exchange of financial information (concerning alleged terrorists) with
the USA, so might be willing to sign similar treaties with the UK. It has also
recently agreed
an ‘umbrella’ treaty on general exchange of police information with the USA,
although this is not yet in force.

However, the EU has not extended
access to its system on exchange
of criminal records to any non-EU countries. While there is a Council of
Europe treaty on mutual assistance in criminal matters (which the UK and all
other Member States are party to) that provides for some exchange of
information of such records, it results in far less information exchange. The
exchange of criminal records is particularly important for the UK: the
government has reported
that the UK is one of the biggest users of the EU system, and that criminal records checks of foreign
nationals in the criminal justice system have increased 1,650% since
2010.

However, there is a particular
issue that has complicated the exchange of personal data between the EU and with
non-EU countries, particularly as regards policing data. Are their data
protection standards sufficient as compared to the standards maintained by the
EU? If not, then the European Parliament may be reluctant to approve the deal,
or it might be challenged in the EU Court. This isn’t a hypothetical
possibility – it has happened several times already.

I have discussed this issue in
more detail in a recent
blog post for The Conversation, but I will summarise the main points there
again. As regards deals between non-EU countries and the EU itself, the EU
Court of Justice has struck
down a Commission decision on the transfer of personal data to the USA,
because there was insufficient examination of the data protection standards
applied by US intelligence agencies as regards access to personal data on
social media. A replacement deal is planned, but will also be challenged
in court. A further case is pending, where the EU Court has been asked
to rule on the legality of the most recent EU/Canada treaty on the exchange
of passenger records data, to ascertain if it meets EU standards for data
protection.

If the UK left the EU, any UK/EU
agreement on the transfer of personal data would have to meet the same
requirements. Those requirements cannot simply be negotiated away, since they
stem from the EU Charter of Rights – part of the primary law of the EU. The
Charter can be amended, but to have legal effect the EU Treaties would also
have to be amended to refer to that revised text. It is hard to believe this could
happen at the behest of a country which has just left the EU.

Would UK legislation meet the
test of being sufficiently similar to EU standards? The Court of Justice has
been asked in the pending Davis
and Watson case whether the rules on police access to personal data
comply with the EU law that binds the UK as a Member State. Another Bill on
this issue is pending before the UK Parliament, and would likely become an Act
of Parliament before Brexit. Since many privacy campaigners are critical the
draft Bill, there would almost certainly be similar legal challenges to
transfers of personal data to and from the UK after Brexit, unless the UK
agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising
the position of the two sides in the referendum campaign contains a number of relevant
claims from each side. For the Remain side, the pamphlet says that the EAW
‘allows us to deport criminals from the UK and catch those fleeing justice
across Europe’, and that EU membership helps to tackle ‘global threats like
terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to
control…vital security policies such as counter-terrorism’ and the EU Court
‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for
the first Remain claim, as noted above the statistics show that the number of
persons extradited to and from the UK have indeed increased since the EAW has
been applied – although some
extradition would still take place even if the UK did not apply the EAW.

In light of the official UK
government information
referred to above, other operational cooperation via Europol and other forms of
EU police and criminal law cooperation presumably has some impact on combating threats
like terrorism and other serious crimes in practice. However, it is not
possible to estimate their impact compared to purely national actions and other
forms of international cooperation.

As for the arguments by the Leave
side, it is clear from the description of the laws which the UK applies that
the EU does not ‘control…vital security policies’. The functioning of the UK
law enforcement authorities is up to the UK, and there is no EU regulation of
intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case
law to date impacting intelligence agencies concerns non-EU
intelligence agencies. The ruling restricts transfers of data gathered by
social networks to those non-EU countries in that context, unless those
countries apply EU data protection law. If the UK left the EU, it would therefore
be subject to the same restrictions on obtaining personal data in criminal
cases from the EU. Leaving the EU is therefore more likely to impedeUK intelligence agencies’
work, than it is to facilitate it.

Conclusion

The UK’s participation in EU
criminal and policing law has led to an increase in cooperation in areas such
as extradition and the exchange of police information. In these cases, there
are question marks about what would happen after Brexit – mainly political but
to some extent legal too. In the event of Brexit, there is a very high
likelihood that cooperation between the UK and the remaining EU would be
reduced (although not to zero). And in light of the UK’s opt-outs and the
limited effect of EU law on purely domestic matters, it cannot seriously be
argued that UK law enforcement and intelligence agencies are ‘controlled by’
the EU.